Preserve the Motion. Audit the Sentence.
Two criminal-defense lessons from McMillian v. State
A criminal case can turn on what happens before the jury hears the challenged evidence—and before the court accepts the agreed sentence.
In McMillian v. State, CR-2023-0898 (Ala. Crim. App. June 27, 2025), the Alabama Court of Criminal Appeals addressed both points. The Court rejected a challenge to blood-draw evidence because the defense did not make a timely, specific suppression argument. But it also reversed an illegal sentence imposed under a plea agreement for a Class D controlled-substance-possession conviction and required the trial court to allow the defendant an opportunity to withdraw the plea after resentencing.
The result is a useful reminder for Alabama criminal-defense counsel: preservation and sentencing review are separate, essential parts of case preparation. A vague objection may not secure review of a suppression issue. And an agreed sentence is not safe merely because every party accepts it; the court cannot impose a sentence that does not conform to the applicable law.
Track one: a suppression challenge needs timing and specificity
In the DUI case, the State introduced evidence from blood draws taken after the defendant was arrested and officers obtained a search warrant. The defense did not file a written pretrial suppression motion. During trial, after an officer described events at the hospital, defense counsel asserted that the blood seizure was “unreasonable” and asked for a suppression hearing.
The trial court asked for the legal basis. Trial Counsel did not identify a more particular legal or factual ground, and the court denied the request. The defense also did not object when the related video, toxicology testimony, and toxicology report were later offered.
The Court of Criminal Appeals held that the issue was not preserved. It emphasized two familiar, practical paths to preservation:
File a specific pretrial motion to suppress and obtain a ruling; or
Make a timely and specific objection when the evidence is offered at trial.
A general assertion that evidence was “unreasonable” was not enough. The Court also noted that blood evidence obtained under a search warrant carries a presumption of validity; a defendant challenging the seizure must identify the legal and factual basis for doing so.
What defense counsel should do before trial
A suppression motion should make the court’s task concrete. Depending on the facts, counsel should identify the precise claimed defect—for example:
lack of a valid warrant or a defect in the warrant process;
insufficient probable cause;
an unlawful stop, detention, arrest, or search;
an overbroad warrant or execution beyond the warrant’s scope;
a failure to comply with a legally required procedure; or
a specific constitutional or statutory basis for exclusion.
The motion should tie the legal theory to the known facts, request the necessary hearing, and identify the evidence the defense seeks to suppress. If the State introduces the challenged evidence at trial and the pretrial record does not clearly resolve admissibility, counsel should make an appropriate contemporaneous objection and state the same ground with enough specificity to permit a ruling.
A hearing is not a substitute for a theory
McMillian does not mean that hearings on unlawfully obtained evidence are unimportant. Rule 104(c) provides that, in criminal cases, hearings on the admissibility of confessions or evidence alleged to have been obtained unlawfully are conducted outside the jury’s hearing and presence.
But the decision distinguishes a bona fide, sufficiently developed suppression issue from a conclusory request. In the Court’s view, the trial judge gave defense counsel an opportunity to elaborate outside the jury’s presence; the defense did not offer a legal or factual basis beyond an assertion of unreasonableness.
The practical point is simple: requesting a hearing does not eliminate the need to articulate the issue the hearing is supposed to decide.
Track two: an agreed sentence can still be illegal
The second case in McMillian involved a guilty plea to unlawful possession of a controlled substance, a Class D felony. The parties agreed to a five-year straight sentence. The sentence fell within the general statutory imprisonment range for the offense, but the Court held that it did not comply with the applicable presumptive sentencing standards and split-sentence requirements.
The sentencing worksheets showed a prison disposition and a recommended split-sentence range. The record did not show an asserted or found aggravating factor that would justify a departure. Under the governing framework for that sentencing event, the Court concluded that the straight five-year sentence was illegal.
The Court reversed the sentence and remanded for resentencing. Because the illegal sentence had been part of the plea agreement, the resentencing would amount to rejection of that agreement. The Court therefore held that the defendant must be allowed to withdraw the guilty plea if the defendant timely seeks withdrawal after resentencing. The defendant is not required to withdraw the plea.
The lesson is broader than one drug-possession case
The case is not a promise that every sentencing disagreement will invalidate a disposition. Its point is narrower and more important: counsel cannot stop the sentencing analysis at the statutory maximum or at the parties’ agreement.
For a covered offense, counsel should also determine whether the presumptive sentencing standards apply; review the proper worksheets and scoring; identify the recommended disposition and sentence-length range; assess any mandatory split-sentence or community-corrections requirement; and identify any proposed departure and the procedure supporting it.
An agreement between the prosecution and the defense does not authorize a court to impose an unlawful sentence.
A pre-plea and pre-sentencing audit
Before a client accepts a negotiated disposition, defense counsel should review the following:
Question
Why it matters
What is the exact offense of conviction and offense date?
The offense classification and governing sentencing law can depend on the charged offense and applicable version of the law.
Do the presumptive sentencing standards apply?
Covered offenses require more than a check of the general statutory sentencing range.
Are the correct worksheets complete and supported by the record?
Worksheet scoring affects the recommended disposition and sentence range.
What disposition does the worksheet recommend?
A prison, probation, drug-court, diversion, split-sentence, or community-corrections outcome may carry different legal requirements.
Does the proposed sentence comply with any applicable split-sentence statute?
A sentence can fall within the general statutory range yet still be illegal in its execution or disposition.
Is a departure proposed?
A departure requires attention to the applicable procedure and the factual basis for aggravating or mitigating factors.
Does the client understand the actual sentencing consequence?
The plea colloquy should accurately communicate the legally available punishment and disposition.
If the disposition changes, what happens to the plea agreement?
A corrected sentence may permit the client to seek withdrawal of a plea that was induced by an unlawful term.
The two-track criminal-defense checklist
Before the evidence comes in
Identify all potential Fourth Amendment, statutory, and evidentiary suppression issues early.
File a written, fact-specific motion when possible.
Request the appropriate hearing and identify the evidence at issue.
Obtain a clear ruling.
If the issue arises at trial, object when the evidence is offered and state the particular ground.
Preserve the relevant documents, video, warrant materials, reports, and hearing record.
Before the plea is accepted or sentence is imposed
Confirm the offense class and statutory range.
Determine whether the presumptive standards apply.
Review the completed worksheets, scoring, and recommended outcome.
Check any split-sentence, probation, community-corrections, or departure requirements.
Compare the negotiated term to the legally authorized sentence and disposition.
Explain to the client what will happen if the court cannot lawfully impose the negotiated sentence.
Bottom line
McMillian supplies a practical warning at two high-stakes points in a criminal case. First, a suppression issue must be raised timely and specifically; “unreasonable” is a conclusion, not a developed basis for exclusion. Second, a negotiated sentence must be legal, not merely agreeable.
The best defense practice is to build both reviews into the workflow: preserve the suppression record before the evidence reaches the jury, and audit the sentencing framework before the client enters a plea or the court announces sentence.
This article is for general informational purposes only and is not legal advice. It discusses Alabama law and the particular procedural and sentencing posture in McMillian v. State. Counsel should verify the statutes, sentencing standards, worksheets, and procedural rules applicable to each individual case.